Law lords

Supremely important

A challenge to Britain's Guantánamo

THIS week provided the best illustration yet of how European human-rights legislation is turning Britain's House of Lords into an American-style Supreme Court. High-profile clashes between the government and the constitution are standard fare in America. In Britain, where the Human Rights Act, derived from the European Convention on Human Rights, is a sort of embryonic constitution, they are novel. But that's what happened when lawyers for nine men, most of them held without charge for nearly three years, challenged their detention, arguing that it not only violates international law, but also threatens the values that Britain's anti-terrorist laws are meant to protect.

The 2001 Anti-terrorism, Crime and Security Act gives ministers the power to detain any foreigner who poses “a risk to national security, and has links with an international terrorist group”. This required Britain to opt out of Article 5 of the European convention guaranteeing the right to liberty and a fair trial. Opting out is permitted in cases of “public emergency threatening the life of the nation”, but no other European country has done so.

Human-rights groups have likened the detainees to those in Guantánamo Bay, but the parallel can be overdone. Unlike their counterparts held by the Americans, Britain's detainees have access to a lawyer of their choice and the right of appeal to an independent tribunal. They are also theoretically free to leave the country—though the government may not deport anyone at risk of being killed or tortured.

Of the 16 detained, all north African Muslims, two have left Britain, one has been released on bail, a fourth has been freed after winning his appeal against continued detention and a fifth has been released because he was no longer deemed a security threat. The present legal challenge has been mounted on behalf of eight men in Belmarsh prison, south London, who have had their appeals rejected, and one who was released last month.

That this case is being heard by a panel of nine law lords instead of the normal five—which has happened only once since the second world war—is a measure of its importance. Lord Steyn, one of the most respected law lords, agreed not to sit on the panel having declared, in November 2001, that Britain's derogation from Article 5 “is not, in the present circumstances, justified”. The government for its part is fielding a team of six barristers headed by the attorney-general, Lord Goldsmith. He argues that the extraordinary nature of the terrorist threat since September 11th 2001 justifies extraordinary measures.

A ruling is not expected for another six to eight weeks. If the detainees lose, they could still appeal to the European Court of Human Rights—which originally gave its blessing to Britain's derogation from Article 5. The government has no such right of appeal. An adverse ruling would constitute a severe blow to its moral standing as well as to its plans for a new raft of anti-terrorist measures.